The “Three Bullet Rule”

The outrage is palpable, perhaps making a new world record in public resort to Godwin’s Law. All because of three bullets. From the Buffalo News:

A Town of Lockport man who was a passenger during a traffic stop was charged when he turned over a loaded semiautomatic handgun in a holster from the glove compartment to an officer on Saturday. The gun was legal, but police say the 10 rounds of 9 mm ammunition found in the magazine were not, because they violated the state law that states it is unlawful for any person to knowingly possess a magazine with more than seven rounds.

Lawfully possessed handgun. Not used in an unlawful manner. Guy who advised the police openly that he possessed the gun and did everything to assure the safety of all involved. No issues of his being a bad dude in any way. Except that he had 10 bullets in the magazine, which was three more than the law allows.

Lockport Police Chief Lawrence M. Eggert said this is the first time city police have made an arrest involving the New York SAFE Act and admitted they were getting compared to Nazis on social media.

“One of the comments said, ‘When are you going to start loading people into cattle cars?’ ” said Eggert.

See what they did there? The State of New York passed a law, part of which prohibited the three bullets over the line. So now it’s the cops’ fault?

The problem is one that happens over and over, and which criminal defense lawyers (including the one who writes here) keep railing about in order to get it into the thick head of politicians, academics and the public: criminal laws crafted after a particular tragedy carry the weight of that tragedy as justification for its prohibitions. But they are later applied to all people under all circumstances. This is the law of unintended consequences, and no court can reverse it.

The point of the law, which came on the heels of the Newtown, Connecticut tragedy, was to limit the number of bullets a person could lawfully carry in a weapon’s magazine so that they wouldn’t be able to shoot too many children.

Why seven bullets? Why not ten? Why not two, for that matter? The argument centered around how many bullets a “legitimate” hunter or sports shooter might need. After all, there would be plenty of time to reload and no need to have the ready availability of enough bullets to kill a classroom full of children. That’s what happens when laws are driven by unique circumstances.

And why did the defendant have ten bullets in his magazine instead of the lawful seven? Beats me. Maybe he miscounted. Maybe he just filled up the magazine with what he had sitting in front of him. Maybe he’s math-challenged. Who knows? What is known is that he didn’t do it to kill children, or to commit any other crime. He just did it.

But he’s not the guy we want to stop, you cry. What’s wrong with these cops, arresting a good guy when the law was meant for bad guys?

But he said the department’s role is to enforce the law, whether it is popular or not.

“It’s on the books, and if we see it, we have to do something about it,” Eggert said.

That’s exactly right. It’s not the proper role of the police to decide what laws they deem worthy of enforcing, or which defendants they deem sufficiently good or bad to warrant arrest. The legislature passes laws. The governor signs them. The police enforce them. That’s how it’s supposed to work, and to excoriate the cops for doing their job properly is misguided.

Could the police officer have exercised discretion? Sure. They do so all the time, though that too tends to anger people who see it as the police as imposing their subjective views on the public rather than the collective view of duly elected lawmakers. Who are the cops to decide that they don’t need to enforce a law?

The point isn’t to be angry about what happened here, but rather to both direct the anger toward the culpable party, in this case the legislature, and to learn from it not to do the same thing the next time.

Hopefully, Paul A. Wojdan will be cut a break by the prosecutor, and either allowed to plead down to a violation, given an adjournment in contemplation of dismissal or cut loose altogether. Not because he didn’t break the law. He did, although it appears that there might be a very viable argument that the search of his magazine was unconstitutional and the evidence should be suppressed.

No, Wojdan is not the person we had in mind when the law was enacted. No, we won’t sleep any better knowing that Wojdan was arrested. No, we will not feel that society is any safer by saddling Wojdan with a criminal conviction. In fact, it’s all pretty nuts.

But this is the law passed in the heat of passion following the Newtown tragedy. And Wojdan broke this law. If you have a problem with it, your problem is with the law and the processes that drive the creation of laws to prevent these sorts of tragedies. While they wouldn’t have any meaningful impact on anyone bent on doing the harm the law exists to prevent, they will have dire consequences for the people who, for whatever dopey reason, violate it without any ill intent whatsoever.

Then again, there will also be people who will care nothing about Wojdan’s arrest or even his subsequent conviction, because it’s the price that must be paid to avenge the Newtown shooting and prevent it from ever happening again. It won’t, of course, and the paradox of concern and callousness is apparent, but they will be the righteous voices calling for new crimes when the next tragedy happens.

Actually, police officers do have an option which is used before they initiate an arrest; Officer Discretion. This is what an officer uses when deciding not to charge a colleague with drunk driving, or a fellow officer’s son with pot possession, or even issue a traffic citation to a neighbor. Prosecutors use a version of it, too, like when they announce they are dropping charges “in the interest of justice”. Since the officer in this case chose not to exercise his own common sense it’s now up to the district attorney to prove he’s not a fool as well, and drop the charges.

So I take it you were in such a rush to comment that you neglected to read that part of the post that discussed discretion? By the way, starting a comment with the word “actually” is kind of an indicator that what follows isn’t going to be good. And finally, whenever anyone relies on “common sense,” a facile concept employed when someone lacks the ability to express well-founded reason, it pretty much undermines the point. Just sayin’.

Perhaps the Barney Fife Rule would be helpful? One bullet, in a pocket.

But this is the sort of thing that happens with ‘Zero Tolerance’ and arbitrary numbers; bureaucratic rules, which are enforced (because they are the law). And once they are the law, getting the law changed (let alone removed) is a far more onerous process than making a rule in the first place.

Jefferson once observed that the Senate existed to cool the passions of the House; that popular sentiment might demand something in the short term, but cooler (not necessarily wiser) heads might see more clearly. Perhaps a waiting period before a law becomes finalized might be helpful.

Carnac sez the answer is PEOPLE. If we outlaw people, then only people will be outlaws. Good answer?!? Good answer!! I’ll take Points of Light for 1000, Johnny, er um, Scotty. Can I have my points now?? Beam me, Scotty . . .

LOL, I reckon that you mentioned it, at least once that I recollect. Butt in the interest of the snarkification of the absurd, I thought you’d let it slide, this onetime, and for one-time only. I mean really, can merely a Scott beam one up?? From my vantage point, the extra syllable is the difference between proper rematerialization and certain oblivion. Light can do that to you . . . Scott . . .

Another soundly reasoned article, pity folk like you don’t write for the MSM. No wild exaggeration or selective fact usage, just rational and objective analysis. Funny thing is I no longer expect that from lawyers, I am ashamed to say I with Shakespeare when it comes to that profession.

Don’t blame me, I was against the law in the first place and angry at the petty tyrants in NY state for trying to get it passed. That said, I don’t live there and they have little incentive to listen to me above the cacauphony of media outcries and national politicians demanding that “something” be done.

Well, this was the something. I don’t quite share your sentiment that this was not the “bad guy” the supporters of the law were trying to stop, though. A big portion of them would just as soon see the number of bullets (and guns) legally available to non-government employees be zero, and this was all they could muster from a legislature vote at the time.

This is the law of unintended consequences, and no court can reverse it.

Might I respectfully suggest that you are far too kind in your characterization “unintended consequences” here?

I certainly agree with Jesse above, that these particular consequences were intended by the proponents of the law. But even the legislature which passed the law must have intended these consequences if they were warned of them before passing the law.

They may have discounted the warning of the consequences, but discounting the warning still means the consequences were intended. Yes, I’m suggesting a rhetorical analog of the felony murder rule to be applied to legislators who vote for legislation after fair warning of its consequences, then argue that its consequences were not intended.

If the law itself is harsh to ordinary citizens with respect to unintended consequences, I see no reason for rhetoric about law to be less harsh to legislators who deny their intention for bad consequences despite fair warning.

Aside from that, I’m almost as nice and kind to politicians as you are.

SHG, no idea how I stumbled onto your writings, but you certainly provokes though. My gripe is this: LE and .mil take an oath to protect and defend the constitution against all enemies, foreign and domestic.

So yes, I see anyone turning law-abiding citizens into criminals as foot soldiers of tyrants, guilty of breaking their oath and treason. “Just following orders” is not a valid excuse, nor should it be.

If a drunk kills 5 people, we blame the drunk, not the car. If a nut kills 5 people with a gun, we blame the gun. It defies logic

Part of the problem stems from the failure to control criminals and focus on the ones doing the crimes. How can career criminals simply get back on the streets repeatedly without the system we all rely on abdicating the responsibility assigned to it? Can anyone explain folks convicted of multiple firearm charges being free to ply their trade? Can anyone explain a murder in Baltimore City on a stet docket?

I think we would all agree in the instance of crime, the objective is to persuade the guilty party to cease and not to punish all people equally regardless of guilt or innocence.

I read the US Constitution and 2nd Amendment. No Where in that sacred document does it say, where Americans need to get permission from any Authorities to own, possess, or restrict gun ownership or the number of bullets in a magazine. These Bogus Anti-Gun Laws/ Magazine Restrictions are unconstitutional and treasonous. Its time to employ Citizens Arrest against those Tyrants that violate the Constitution and hold them accountable. How about Cops be limited back to .38 Cal 6 shooters and regular police uniforms and ban all these militaristic Swat Gear and no knock raids over a petty dope charge. The warped mental state of our Governments against the public, “us against them” mentality needs to end. Lets get back to Protect and SERVE!!! We need to end the funding for these corrupt programs including asset forfieture, Starve the Beast!!

Great job. You spelled almost all of the words right and used exclamation marks and all caps very effectively. The use of inappropriate capital letters to begin words left something to be desired, but that would be needless nit-picking. On the other hand, reading the Constitution and Second Amendment generally isn’t sufficient to have a firm grasp of all emanations and penumbras of constitutional law. Still, great effort.

Limiting to 7, the number of bullets in a magazine is rather silly as it is legal to possess a ten round magazine, but not fill it to capacity. Sillier still was the rush to put this “law” into effect, so much so that they neglected to exempt the police from the law. Of course, they were permitted to disregard said law.

What I find more disconcerting is the fact that residents of the great (sarcastic) state of New York are required to destroy or otherwise dispose of magazines exceeding ten rounds. The term politicians and newspapers like to use is “high capacity” magazines, yet as one who has carried one in the service of our nation, and for recreational purposes, I can say unequivocally that 20 and 30 round magazines are “standard capacity” magazines for the M-16/AR-15 family of firearms as well as numerous others. What is required under the law is the possession of previously non-existent “low capacity” magazines. It’s further reprehensible that an object (a metal box with a spring in it) is legal one day and a criminal offense the next.

The firearms themselves, some previously completely legal pre-1994, others requiring solely cosmetic changes post-1994, will require registration come January. IMHO, we will see a massive amount of civil disobedience and most previously “law-abiding” citizens will hide, move, bury or otherwise make their firearms scarce until they’re deemed to be needed. I’m of the opinion that when they say it’s time to start burying them, it’s actually time to start digging them up. Not advocating……just saying.

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Scott H. Greenfield

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